DISCIPLINARY COMMITTEE OF THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS

Transcription

1 DISCIPLINARY COMMITTEE OF THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS REASONS FOR DECISION In the matter of: Mr Giles Barham Heard on: 11 March 2015 Location: ACCA Offices, 29 Lincoln s Inn Fields, London WC2A 3EE Committee: Mr Chris Chapman (Chairman) Mr Robert Clarke (Accountant) Ms Kate Menin (Lay) Legal Adviser: Miss Juliet Gibbon Persons present and capacity: Ms Deborah Baljit (ACCA Case Presenter), Mr Barham (member) and Ms Amrita Tooray (Committee Officer); Ms Alisa Cojeen (Committee Officer) Observers: PRELIMINARY ISSUE BIAS 1. Mr Barham originally faced an allegation of dishonesty in relation to his alleged misconduct in failing to disclose his 2008 criminal conviction to ACCA in his online application for ACCA student membership on 7 November Papers containing that allegation were sent by ACCA to the Committee in error. As soon as the error was realised the Committee members were asked not to read those papers and a new set, containing the correct allegations, was sent to them. The Committee members indicated that they had not read the original papers but they were aware that dishonesty had initially been charged against Mr Barham. 2. Mr Barham was informed of the error in a letter dated 26 February He sent an to ACCA stating: In order to be able to continue with the hearing I am happy with the steps. I have some reservation, however, that the members of the committees minds may have already been somewhat tainted by the previous correspondence and I hope this will not affect the verdict. 3. As a result of Mr Barham s comments the Committee, of its own volition, raised the issue of bias. Ms Baljit apologised on behalf of ACCA for the error but submitted that there was no bias. Mr Barham informed the Committee that he was not alleging bias on the part of the Committee or asking the Committee to recuse itself.

2 4. The Committee, having heard the representations made by ACCA and Mr Barham and having considered the legal advice, which it accepted, concluded on the basis of the test in Porter v Magill [2011] UKHL 67 that a fair minded and informed observer, having considered the facts, would not conclude that there was a real possibility that the tribunal was biased. 5. The Committee considered, therefore, that there was no need to recuse or disqualify itself from hearing Mr Barham s case. ALLEGATIONS 6. The Committee convened to consider three allegations against Mr Barham Allegation 1 Pursuant to bye-law 8(a)(i), Mr Giles Barham is guilty of misconduct in that he: (a) on 15 June 2008, drove a motor vehicle after consuming so much alcohol that the proportion of it in his breath, namely 78 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988; (b) On 17 May 2013, failed to provide a specimen for analysis, having been required to provide a specimen of blood for a laboratory test, contrary to section 7(6) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act Allegation 2 Pursuant to bye-law 8(a)(i), Mr Giles Barham is guilty of misconduct in that on 7 November 2011, [he] failed to declare to the ACCA the fact of his criminal conviction from 4 July 2008 in an online application for ACCA membership. or Allegation 3 Pursuant to bye-law 8(a)(iii), Mr Giles Barham failed to promptly bring to the attention of ACCA the fact that his conviction may have rendered him liable to disciplinary action contrary to bye-law 10(b). 7. ACCA was represented by Ms Deborah Baljit. Mr Barham attended the hearing but was not represented. 8. The Committee had before it a bundle of papers numbered pages 1-35, additional papers numbered pages and a service bundle numbered pages The allegations were put to Mr Barham who admitted the facts of Allegations 1 (a) and (b), Allegation 2 and Allegation 3. He admitted misconduct in relation to Allegations 1 (a) and (b) but denied it in respect of Allegation 2.

3 BACKGROUND 10. Mr Barham applied for ACCA student membership on 7 November 2011 and became a student member of ACCA on 23 November On 4 July 2013 the Professional Conduct Department at ACCA received an from Mr Barham disclosing that he had previously been convicted of an offence of driving or attempting to drive with blood/alcohol level above limit on 4 July 2008 for which he had been disqualified from driving for a period of 15 months and fined 335. He stated that he had not disclosed this to ACCA because he had been unaware that it constituted a criminal conviction for the purposes of disclosure to ACCA. In the Mr Barham also disclosed that he had been convicted of an offence of fail to provide a specimen for analysis on 3 July 2013 and was awaiting sentencing by the magistrates. 12. Ms Baljit referred the Committee to a Memorandum of Conviction provided by the Watford Magistrates Court which shows that Mr Barham pleaded guilty on 4 July 2008 to an offence of drive motor vehicle when alcohol level above limit (driving with excess alcohol) on 15 June Mr Barham was fined 250 and disqualified from driving for a period of 20 months. 13. Ms Baljit referred the Committee to a Memorandum of Conviction provided by the Buckinghamshire Magistrates Court that shows Mr Barham pleaded guilty on 3 July 2013 to an offence of fail to provide a specimen for analysis on 17 May Mr Barham was sentenced to a suspended sentence order comprising 12 weeks imprisonment suspended for 12 months with a supervision requirement of 12 months. Mr Barham was also disqualified from driving for a period of 3 years. 14. Ms Baljit submitted that committing such offences is clearly discreditable to Mr Barham and derogatory to ACCA and the accountancy profession. She further submitted that Mr Barham s convictions are conclusive proof of misconduct pursuant to bye-law 8(e), as it applied at the relevant time in 2008 and Mr Barham informed ACCA of his convictions in an , dated 4 July 2013, and he had previously failed to disclose his conviction for driving with excess alcohol when he applied for ACCA student membership on 7 November At that time he declared that he had not been subject to any criminal matters that engaged bye-law Ms Baljit submitted that the application form for student membership was clear and explicit in its instructions and Mr Barham should have known that he had to declare his 2008 conviction when he completed the form. Furthermore, she submitted that the notes section of the form refers to the events under bye-law 8, which includes conviction for a criminal offence by a UK court. 17. Ms Baljit submitted, in the alternative, that if the Committee did not find misconduct in respect of Allegation 2 then Mr Barham is in breach of bye-law 8(a)(iii) in that he failed to promptly bring to the attention of ACCA the fact that his conviction may have rendered him liable to disciplinary action contrary to bye-law 10(b).

4 Mr Barham s Case 18. Mr Barham admitted all the facts. He admitted misconduct in relation to Allegations 1 (a) and (b) but denied it in relation to Allegation Mr Barham brought the criminal convictions to the attention of ACCA on 4 July 2013 which, he submitted, was the first time that he was aware of the need to disclose them. 20. In an , dated 12 December 2013, Mr Barham provided further information in relation to both convictions. In respect of the first conviction he stated that in 2011 he had not acknowledged it as a criminal conviction and overlooked it in haste to complete the application form. Mr Barham stated that on receiving his second conviction he considered ACCA s terms and conditions more fully and realised that he should have previously disclosed the first conviction. 21. The Committee heard oral evidence from Mr Barham who stated that he had been naïve when he stated that he did not acknowledge the 2008 conviction as a criminal conviction. He told the Committee that at the time of the conviction a police officer had informed him that he wouldn t have to disclose motoring convictions on application forms. He accepted that he did not scrutinise the terms and conditions when completing his application for student membership in 2011 and acknowledged that this was not an excuse. He stated that when he was convicted of the second offence he was told that he may need to disclose his criminal convictions so he had researched the matter fully and subsequently disclosed both convictions to ACCA. APPLICATION TO AMEND ALLEGATION During the course of the hearing it became apparent that bye-law 10(b), as it applied in 2011, read: It shall be for every member and for any person to bring to the attention of the Secretary any facts or matters indicating that a member or relevant firm or registered student may have become liable to disciplinary action 23. There was no obligation for a member to do this promptly in 2011, as there was today. 24. In the circumstances Ms Baljit applied to amend Allegation 3 to remove the word promptly. Mr Barham did not object to the proposed amendment. 25. Having heard the representations of the parties and having considered and accepted the advice of the legal adviser, the Committee considered that Mr Barham would not be prejudiced in his defence and decided to allow ACCA s application to delete the word promptly from Allegation 3. The allegation, as amended, represents the only proper allegation that should have been put to Mr Barham at the outset given the wording of the relevant bye-law 10(b) at the time of the alleged failure. 26. The amended Allegation 3 was put to Mr Barham who denied the charge.

5 27. Ms Baljit then indicated that she intended to offer no evidence in relation to Allegation 3. DECISION ON ALLEGATION AND REASONS 28. The Committee considered all the evidence before it and the submissions of Ms Baljit and Mr Barham. The Committee accepted the advice of the legal adviser. 29. The Committee noted that under Regulation 11(2)(c) of the Complaints and Disciplinary Regulations 2015 The status of any criminal conviction is as set out in the bye-law 8 which was in force at the time the matters complained of took place, and the Disciplinary Committee shall apply the provisions of that bye-law to its proceedings. 30. The Committee took into account that under bye-law 8(e), applicable at the time, that the fact that a member had pleaded guilty or been found guilty of, any offence discreditable to him or, as the case may be, it, or derogatory to the Association or the accountancy profession before a court of competent jurisdiction in the United Kingdom shall be conclusive proof of misconduct. It was a matter for the Committee to determine whether Mr Barham s convictions were for offences discreditable to him or derogatory to the Association or the accountancy profession. 31. The Committee had regard to the definition of misconduct in bye-law 8(c) which provides for the purposes of bye-law 8(a), misconduct includes (but is not confined to) any act or omission which brings, or is likely to bring, discredit to the individual or relevant firm or to the Association or to the accountancy profession. Again, it was for the Committee to decide whether Mr Barham s convictions were for offences discreditable to him or to the Association or the accountancy profession. ALLEGATION 1 (a) and (b) - PROVED 32. The Committee found the facts in Allegation 1 (a) and (b) proved by virtue of Mr Barham s admissions together with the evidence of the memorandum of conviction in respect of each offence, which are conclusive proof of the commission of the offences. 33. Mr Barham admitted misconduct but this is a matter for the judgment of the Committee. The Committee considered that Mr Barham s convictions, for offences relating to driving a vehicle with excess alcohol and failing to provide a specimen of breath for analysis, were discreditable to him and derogatory to ACCA and the accountancy profession. The Committee found that bye-law 8(e) applied and there was conclusive proof of misconduct. 34. The Committee, therefore, found that both the criminal offences referred to in Allegation 1 (a) and (b) amounted to misconduct.

6 ALLEGATION 2 - PROVED 35. The Committee noted that Mr Barham admitted that he failed to disclose the first conviction to ACCA when he applied for student membership but he denied that this amounted to misconduct. 36. The Committee found, by reason of Mr Barham s admission, that he failed to disclose his first conviction for driving with excess alcohol when he applied to ACCA for student membership. There was an obligation on Mr Barham, however, to disclose such a serious matter as a criminal conviction to his regulator and he failed so to do. His failure did, in the judgment of the Committee, amount to misconduct in that he brought discredit to himself, ACCA and the accountancy profession. ALLEGATION 3 NOT PROVED 37. ACCA has offered no evidence in respect of the amended Allegation 3 and the Committee, therefore, finds Allegation 3 not proved SANCTION AND REASONS 38. Ms Baljit informed the Committee that Mr Barham had no previous disciplinary findings against him. 39. The Committee heard evidence from two character witnesses called on behalf of Mr Barham. Both gentlemen have worked with Mr Barham. They said that Mr Barham was a hard-working and conscientious young man who had made mistakes in the past but had addressed the personal issues in his life so that the same would not happen again. They said that Mr Barham had worked hard to pass his ACCA examinations and it would be a loss to the profession if he were not allowed to continue with his examinations. 40. The Committee accepted the advice of the legal adviser who referred it to Regulation 12 of the Complaints and Disciplinary Regulations 2015 and to ACCA s Guidance for Disciplinary Sanctions (2013). In considering what sanction, if any, to impose the Committee bore in mind the principle of proportionality and the need to balance the public interest against Mr Barham s interests. The purpose of any sanction was not to be punitive but to protect members of the public, maintain public confidence in the profession and ACCA and to declare and uphold proper standards of conduct and behaviour. 41. By way of mitigating features the Committee took into account that it was Mr Barham who had made ACCA aware of both criminal convictions; that he had pleaded guilty to the offences at the earliest opportunity and now demonstrates remorse and insight. The Committee also took into account that at the time of his offending Mr Barham had personal problems that he has now taken steps to resolve. Mr Barham has fully engaged with ACCA and these proceedings. In terms of aggravating features the Committee noted that Mr Barham had been convicted of two offences that were both related to driving a vehicle whilst under the influence of alcohol.

7 42. The Committee was impressed with the positive testimonials put before it and the letter from Mr Barham s Probation Service Officer at Hertfordshire Probation Trust, who stated that he successfully completed his Suspended Sentence Order on and that Mr Barham has been determined to resolve the issues in his life and I am satisfied that he has been successful in this goal. The Committee also noted that that Mr Barham had not been a member of ACCA at the time of his first conviction. 43. The Committee first considered taking no further action in this case. It was in no doubt, however that to do so would fail to mark the gravity of Mr Barham s misconduct and would undermine confidence in ACCA as the regulator. 44. Having considered that a sanction is necessary in this case, the Committee considered the available sanctions in increasing order of severity. 45. The Committee considered carefully whether the appropriate and proportionate sanction to impose upon Mr Barham was an admonishment or a reprimand. The Committee, however, determined that to impose either of these sanctions would not adequately reflect the finding and seriousness of the misconduct and the fact that there are two findings of misconduct in this case and the first relates to two criminal convictions. 46. The Committee next considered whether a severe reprimand would be a sufficient sanction. It identified that a number of the factors set out in the Guidance in relation to a severe reprimand were present: Mr Barham has good insight into his failings; Mr Barham has apologised for his failings and shown genuine remorse; Mr Barham has taken steps to address the difficulties that contributed to him committing both offences; There are relevant and appropriate references before the Committee and two colleagues have attended the hearing and given evidence as to Mr Barham s character; Mr Barham co-operated fully with ACCA during the investigation stage 47. The Committee was satisfied that the appropriate and proportionate sanction to impose on Mr Barham was a severe reprimand and that no lesser sanction could be justified. The Committee had given careful consideration to the Guidance for Disciplinary Sanctions and concluded, however, that no greater sanction was warranted. The Committee was, therefore, satisfied that a severe reprimand is the appropriate and proportionate sanction which reflects the seriousness of the misconduct whilst maintaining public confidence in the profession and upholding proper standards of conduct. COSTS 48. ACCA originally applied for costs amounting to 2, but Ms Baljit informed the Committee that she was, in fact, applying for costs in the sum of 1, Mr Barham indicated to the Committee that he thought the sum claimed was reasonable.

8 50. The Committee gave careful consideration to the question of costs and concluded that the reduced sum claimed of 1, was reasonable for the work undertaken and that it was appropriate to make an order in that sum. EFFECTIVE DATE OF ORDER 51. This order shall take effect from the date of the expiry of the appeal period referred to in the Regulations or at the conclusion of any appeal should one be made. PUBLICITY 52. ACCA s regulations require ACCA to publish the Committee s findings and orders by way of a news release naming the relevant person, as soon as practicable. The Committee has discretion as to which publications the news release should be sent, and discretion, in exceptional circumstances, to direct that the relevant person is not named. 53. The Committee considered whether there were exceptional circumstances in this case and determined that there were not. There was, therefore, no reason not to make an order for publicity. The Committee ordered that a news release be issued to ACCA s website and to the local press referring to Mr Barham by name. Mr Chris Chapman 11 March 2015